Punjab

Ludhiana

CC/14/539

Des Raj - Complainant(s)

Versus

SewakunjMotors pvt.Ltd - Opp.Party(s)

Jarnail Singh

28 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 539 of 06.08.2014

Date of Decision          :   28.12.2016

 

Des Raj son of Shri Rattana, resident of Q.No.484, Police Colony, Ludhiana.

….. Complainant

Versus 

1.M/s Sewakunj Motors Pvt. Ltd., G.T.Road, Alour, Khanna-141401, through M.D.

2.Hyundai Motor Ltd (HMIL) having its registered office at A-30, Mohan co-operation Industrial Area, Phase-I, Mathura Road, New Delhi-110044, through M.D.

3.Pioneer Motor Ltd (HMIL), G.T.Road, Sherpur Kalan, Ludhiana, through M.D.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Yogesh Kaushik, Advocate

For OP1                         :         Sh.Nitin Kapila, Advocate

For OP2                         :         Sh.Vishal Gupta, Advocate

For OP3                         :         Sh.Harpreet Singh, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn of unnecessary details, the case of the complainant is that he

Purchased I-20 car bearing registration No.PB-10-EH-3141 and temporary registration No.PB-10-EC(Temp)-0021 having engine No.287160 and Chassis No.MALBB 51RLDM 562748E from OP1, the authorized dealer of OP2, on assurance that due services will be provided and car will not create any problem. Further assurance was given that in case of any problem of manufacturing defect, due services will be provided at the fully equipped service centre of OP1 and problem will be resolved. Further, it was assured that in case, OP1 failed to solve the problem of manufacturing defect, then vehicle will be got changed with new one from OP2. On 1.11.2013 at about 11:00 AM, the complainant met with an accident at Paghwara while travelling in the abovesaid vehicle along with his driver, but both the airbags of the car did not open, due to technical/manufacturing fault. Complainant sustained many injuries in course of accident because he got six ribs fractured on the left side of his chest. Complainant rushed to CMC Hospital, Ludhiana on same night i.e.2.11.2013 and discharged there from on 5.11.2013. An amount of Rs.25,000/- was incurred as expenses on this treatment. Complainant was advised to have complete bed rest for one and half month. Complainant could not do any work during the period of bed rest. On 14.11.2013, the complainant with the help of his friend, shifted his car through the Crane Service of Perfect Crane Service, Ludhiana to the premises of OP3, the authorized dealer of OP2, on advice of OP1, but OP3 has not repaired the car of the complainant. Rather, OP3 kept the car in his agency for long time. When the complainant enquired about the said car from OP3, then latter issued a letter dated 6.3.2014 for calling upon the complainant to deposit the car parking charges. Complainant requested OP1 many times to repair the car and if not possible, then replace the same with new one, but to no effect. Behaviour of Ops caused great mental tension to the complainant and that is why, complainant sent legal notice dated 9.7.2014 through Sh.Jarnail Singh, Advocate for calling upon Ops to replace the car with new one and pay compensation of Rs.3 lac. No reply was submitted by Ops and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to replace the car and pay compensation of Rs.3 lac for mental harassment, but Rs.25,000/- on account of expenses incurred on treatment.

2.                In written statement filed by Op1, it is pleaded interalia as if present complaint is not maintainable; complainant has not approached this Forum with clean hands because he suppressed the material facts; motive behind filing this complaint is to cause harassment to OP1 by dragging him in false litigation. OP1 is   only the seller of the vehicle in question and except that he has no role in the matter. Op1 deals in sale of cars manufactured by OP2 and as such, OP1 has nothing to do with the manufacturing defect, if any, in the car because responsibility of removing the manufacturing defect is of OP2. Before purchasing the car, the complainant duly inspected the car and satisfied himself about the functioning of the car including air bags. Complainant is fully aware about the functioning of the air bags, but even then he did not take precaution while driving the car. Accident in question took place due to negligence of the complainant. No manufacturing/technical defect alleged in the car. Admittedly, the complainant purchased i20 car from OP1, a dealer of OP2 and that car in question was registered with Registering Authority vide registration No.PB-10-EH-3141. It is denied that OP1 assured the complainant for removal of manufacturing defect, if any existing in the car or that he assured for change of the vehicle with new one, in case of manufacturing defect. No such assurance was ever given by OP1 to the complainant and allegations levelled in this respect are alleged to be creation of the mind of the complainant. Factum of taking place of accident in question denied. Even OP1 was not informed regarding the accident and nor any copy of DDR or FIR was supplied to him. If at all accident in question had taken place, then the same was not due to any alleged fault on the part of OP1. Rather, factum of taking place of accident or of sustenance of injuries or of fractures or of admission   of the complainant in hospital denied by one by one each. It is denied that the car in question shifted by the complainant on 14.11.2013 to the premises of OP3 on advice of OP1 for repair of the car. Such advice was never given by OP1 to the complainant. Complainant never approached OP1 for repair or replacement of the car as alleged. Each and every other averment of the complaint denied one by one  by claiming that complainant is not entitled for any compensation. Factum of receipt of notice dated 9.7.2014 through counsel even denied.

3.                In separate written statement filed by OP2, it is claimed that the complaint being false, baseless and frivolous merits dismissal, complainant has failed to disclose the true facts qua the manner of taking place of accident or of registration or lodging of police complaint qua the accident in question or of intimation to the insurance company qua the accident. Complaint also alleged to be bad due to non-joinder of necessary parties because insurance company has not been impleaded as a party, despite being proper party. Even complainant deliberately has not disclosed the insurance claim status and nor regarding survey report of the insurer. Complainant has not produced the report of any laboratory recognized by the Central Government or State Government to prove the manufacturing defect. In absence of production of proof of expert opinion or expert evidence, complainant failed to establish the inherent or latent defect in the vehicle in question. There is no manufacturing defect in the vehicle in question as alleged. SRS airbag deployment depends upon a number of set conditions built into the logic of the control unit. The airbags are designed to inflate in a collision depending on the intensity, speed or angles of impact from a front collision. In case set conditions are not met then the air bag would not inflate. For front airbag inflation the impact on the car should be direct and same should meet predetermined set values of sudden decelaration in the car movement. The SRS is designed to deploy the airbags only when an impact is sufficiently severe and when the impact angle is less than 30 degree from the forward longitudinal axis of the vehicle and will not deploy in rear, side or rollover impacts. Airbag will not deploy in frontal crashes below the deployment threshold speed. All these conditions are mentioned in Owner’s Manual. Airbags would deploy only when the rate of deceleration is more than the threshold limit and airbags are not expected     to deploy in event of Side Impact, Angular Impact, Roll Cover case and ride under a vehicle with a higher ground clearance and other crashes, where the deceleration is less than the threshold speed. When the vehicle was brought to the service centre, then the same was examined by the technical experts of OP for finding that the vehicle was hit and damaged from the upper portion of the vehicle such as hood, front windshield and front outer pillars. There was no major damage to radiator, bumper and bumper rail. Both impact sensors and its wiring were OK. No impact was recorded by SRS control module. There was no damage to tyres. Complainant has deliberately concealed the fact pertaining to the impact on the upper portion of the vehicle because it is a case of under riding under a vehicle with a higher ground clearance. It was on account of this that there was no impact on the sensors. Sufficient impact was not recorded in the air bag control module. Dispute of accidental repair work is not covered under warranty policy of OP2. Aspect of accidental repair work is strictly between the complainant and insurance company. OP2, as manufacturer, has no role in the present dispute. No cause of action has accrued to the complainant against OP2. Relation between dealers and OP2 is on   principal-to-principal basis and as such, OP2 not liable for any errors or omissions or mis-representations on part of OP1. Complainant has not disclosed as to whether the vehicle was hit while in running condition or something has fallen on the vehicle itself while being parked. Had there been any manufacturing defect in the car, then same would have not covered extensive mileage of 9864 KMs within 5 months from its purchase on 16.6.2013 to until 14.11.2013. Each and every other averment of the complaint denied.

4.                In separate written statement filed by OP3, it is claimed that there is no deficiency in service on the part of this answering OP; there was no manufacturing defect in the car at the time of accident and moreover, registration of the car was not got prepared by the complainant upto the date of accident. After refusal to pay by the insurance company, complainant never approached OP3 for repair at his own expenses. OP3 cannot start the repair until and unless the customer gives in writing to start the repair at his own expenses. Complainant even has not picked up the vehicle from the workshop of OP3 till date and as such, he is liable to pay Rs.250/- per day as parking charges. Though, the complainant himself is at fault, but he is trying to blame OP3. A number of reminders were sent to the complainant to either to give consent for repair at his own expenses or take back the car, but to no effect. As manufacturing defect in the car is not there and as such, question of replacing the car does not arise. In fact, the sensors of the air bags were underneath the head lights and the air bags open only, if the impact of the accident would have been on the head lights. OP3 inspected the vehicle and found the impact of the accident was on the top of the bonnet and not on the head lights.It was due to this that the air bags did not open. Allegation of manufacturing defect also denied.

5.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C11 and even affidavit Ex.CX of Sh.Hardeep Kumar, Proprietor of Rama’s Motor Workshop tendered in evidence and thereafter, complainant along with his counsel closed the evidence.

6.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA1 of Sh.Nand Kishore, Accountant in OP1 concern and then closed the evidence.

7.                Counsel for OP2 tendered in evidence affidavit Ex.RA2 of Sh.Manish Kumar, Assistant Manager, Legal and Secretarial of OP2 along with documents Ex.R2/1 and Ex.R2/2 and thereafter, counsel for OP2 closed the evidence.

8.                Counsel for OP3 tendered in evidence affidavit Ex.RX of Sh.Yogesh Kumar, Workshop Manager of OP3 and then closed the evidence.

9.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

10.              Affidavit Ex.CW1/A of complainant along with delivery receipt Ex.C2 shows that i20 Sports 1.4 car of Hyundai make bearing registration No.PB10-EC(Temp) 0021 was purchased by the complainant on 16.6.2013 and got delivery of the same. It is the claim of the complainant that accident of the car in question took place on 1.11.2013 at about 11:00 PM at Phagwara, when the complainant along with driver was travelling in the car. It is vehemently contended by counsel for the complainant that airbags of the car did not open despite this accident, resulting in fracture of six ribs of left side of chest of the complainant and as such, there was manufacturing defect in the car because at the time of sale of the car, it was disclosed that airbags will open due to impact of the accident. Even if allegations in this respect are levelled in para no.3 of the complaint and attempt made to prove that fact through affidavit Ex.CX of Sh.Hardeep Kumar, Proprietor of Rama’s Motor Workshop, despite that the requisite material not enough to establish the manufacturing defect because Sh.Hardeep Kumar cannot be treated as an expert in the line as discussed hereinafter.

11.              Though, accident in question took place on 1.11.2013 as per claim of the complainant, but copy of registration certificate Ex.C3 of the vehicle in question bearing registration No.PB-10-EH-3141 shows that this vehicle was got registered with Motor Vehicles Registering Authority, Ludhiana on 2.12.2013. So, registration of the vehicle took place after one month of the accident. If complainant could have got the vehicle registered after one month of the accident, then what was the hitch with him in producing the photographs of the vehicle damaged in the accident or to produce the copy of FIR or the DDR lodged with the police. Contents of Ex.C3 show that the complainant Sh.Des Raj has given his address as Hall QNO.484, Police Colony, Jamalpur. That reflects as if the complainant is a police employee and that is why he is residing in Hall Quarter No.484, Police Colony, Jamalpur. A police official bound to know the importance of lodging of FIR or DDR qua the accident. Manner of taking place of accident bound to be disclosed at the time of lodging of FIR and even it is bound to be disclosed as to with which vehicle or object the accident in question took place. Those details of manner of taking place of accident or the object with which accident took place not at all given by the complainant in the complaint or in his affidavit Ex.CW1/A. So, manner of taking place of accident deliberately not disclosed by the complainant. Only that person will suppress such material facts, who want to conceal something. Non-disclosure of the material facts qua manner of accident leads to the reasonable and probable inference that accident may not have taken place in such a manner that impact of the same would not have been  on the sensors fitted for opening of the airbags.

12.              Motor Vehicle Insurance Cover Note Ex.C4 of the vehicle in question even produced to establish that the vehicle in question was insured with Bharti Axa General Insurance Company Limited during the period from 16.6.2013 to 15.6.2014. Accident of the vehicle in question took place on 1.11.2013 i.e. within the time, in which, the vehicle was having full insurance cover. If that be the position, then complainant must have lodged the claim with the insurance company    for reimbursement of the expenses likely to be borne for getting damaged vehicle repaired. However, facts regarding the vehicle being insured even concealed. In such circumstances, submissions advanced by counsel for Ops seems to be having force that as the complainant failed to get insurance claim from the insurer, owing to not getting the vehicle registered with Motor Vehicle Registering Authority until the time of accident and that is why, claim by the insurer was not accepted. Even the submissions advanced by counsel for Ops has force that when the complainant failed to get the insurance claim, then he filed this complaint by falsely claiming the manufacturing defect in the car in question. Circumstances of non lodging of FIR or of non disclosure of the manner of accident or the object with which the vehicle in question collided speak volume of deliberate concealment of facts by the complainant.

13.              Ex.C5 to Ex.C8 are the documents showing that the complainant got treatment from CMC & Hospital, Ludhiana for fracture of 6^th rib on his left side. That fracture as per case of the complainant sustained in course of the accident in question. However, this record does not at all prove the manner of accident or the object with which the accident took place.

14.              It is vehemently contended by counsel for the complainant that affidavit Ex.CX of Sh.Hardeep Kumar, Proprietor of Rama’s Motor Workshop establishes that he has experience of repairing of all types of vehicles for the last 25 years approximately and he inspected the car in question on 16.11.2013 for finding that front side of the vehicle has been hit with the backside of the other vehicle. However, in reply to the interrogatories through affidavit submitted by Sh.Hardeep Kumar on 11.3.2016, it is mentioned in response to interrogatory no.3 that the car in question was moving at the speed of around 70 Kms per hour at the time of collision and the collision was so powerful that frond portion of the car including bonnet of the car squeezed towards the back side of the car. Such squeezing of the bonnet of the car towards the back side of the car is not possible, if the front side of the vehicle in question hit with back side of the other front going vehicle. So, virtually Sh.Hardeep Kumar beating about the bush qua the manner of accident. In affidavit Ex.CX, it is mentioned that if any vehicle is struck from the front side, then its safety bag opens automatically provided the seat belts are fastened. However, that in fact is not the position as disclosed by the provisions made in the Safety System Manual of the vehicle as disclosed by contents of document Ex.R2/1.

15.              Perusal of Ex.R2/1 reveals that the front air bags are designed to inflate in a frontal collision depending on the intensity, speed or angles of impact of the front collision. So, in view of this, it is obvious that as per specifications given in the Safety System Manual of the vehicle in question, the front airbags will not open automatically, but they will open only, in case, the impact of the collision on such angles is to make the sensors working. Air bag non-inflation conditions even are mentioned in this manual. It is mentioned therein that air bags does not  deploy in case when low speed collision takes place because in such eventuality the air bags may not provide benefits beyond the protection of the seat belts. Moreover, the front air bags are not designed to inflate in rear collisions because occupants are moved backward by the force of the impact. It is repeatedly mentioned in this manual that front air bags will inflate depending on the intensity, speed of the vehicle and angles of impact. Further, as per conditions mentioned in this manual Ex.R2/1, air bags may not inflate in “under-ride” situation because deceleration forces that are detected by sensors may be significantly replaced by such “under-ride” collisions. However, in case of side impact, air bags may inflate when the vehicle is rolled over by a side impact collision, provided the vehicle is equipped with side impact and curtain air bags. It is also mentioned in this Safety System Manual Ex.R2/1 that air bags may not inflate if the vehicle collides with objects such as utility poles or trees, where the point of impact is concentrated to one area and the full force of the impact is not delivered to the sensors. When such are the provisions made in the Safety System Manual of Hyundai vehicle as per terms of Safety System manual Ex.R2/1, then it was the duty of the complainant to prove that impact of the accident was on the sensors, but despite that they did not work for making the air bags to inflate. Affidavit Ex.CX of Sh.Hardeep Kumar does not disclose that owing to impact of the accident, the sensors deployed happened to have impact there on also. So, affidavit Ex.CX of Sh.Hardeep Kumar does not at all establish that as per the terms and conditions of the Safety System Manual, the air bags did not work.

16.              If the front side of the vehicle would have squeezed towards the back side due to impact of accident, then possibility of the occupants remaining alive even may not have been there, but that is not in the position claimed at all. In such circumstances, it was obligatory for the complainant to produce on record the photographs of the damaged vehicle or the report of the surveyor appointed by the insurance company or  some other expert to prove that sensors did not work despite impact thereon of collision. The position of the sensors even not disclosed by Sh.Hardeep Kumar in his affidavit Ex.CX or in the interrogatories. So, expert examined by the complainant virtually did not try to ascertain as to under what conditions, the air bags were to open or as to what was the location of the sensors viz-a-viz the parts happened to have impact on account of collision. Extent of damage to the bumpers of the car even not mentioned by Sh.Hardeep Kumar in his affidavit Ex.CX or in his estimate Ex.C9. Even it is not mentioned as to which portion of the bumpers was impinged by the impact of the collision. If really the front portion of the vehicle would have been squeezed towards the back side, then certainly the windscreen would have been squeezed altogether. However, in estimate Ex.C9, prepared by said Sh.Hardeep Kumar, mention not at all made qua the required amounts for change of windscreen. That shows that estimate Ex.C9 has been got prepared from a person of confidence of the complainant.

17.              It is mentioned in interrogatory No.3 by Sh.Hardeep Kumar, whose affidavit tendered in evidence as Ex.CX that impact was so heavy that the bonnet pillars and front glass pillars were also damaged. If such was really the impact of the extent on glass pillars, then non mentioning of any breakage of the windscreen itself reflect that lope-sided report got prepared from this Hardeep Kumar by the complainant because of his being a man of convenience.

18.              In reply to interrogatory No.3, though mention made that front portion of the car including bonnet of the car squeezed; pillars and front glass pillars were damaged; bumper of the car cracked, but these details not at all given by this Hardeep Kumar in his affidavit Ex.CX. Despite making of afterthought version qua the damages, it is not mentioned as to where the sensors were     located in the car in question and as to whether the impact of the collision was also found to be there on those sensors. Non mentioning of location of the sensors and angles from which, the collision impact took place itself reflects that so called mechanic Hardeep Kumar did not try to ascertain the conditions, in which, activation of the sensors for opening the air bags takes place. It is on account of this that Hardeep Kumar has not mentioned anywhere in his affidavit Ex.CX as to with which object or the vehicle, accident in question took place. So, relief virtually sought without proving the manufacturing defect. Non opening of the air bags as per stipulation of the Safety System Manual may be due to non impact of the collision on sensors. If that be the position, then in absence of  proof of   impact of the collision on the sensor part, it has to be held that the complainant has failed to establish that really the air bags did not open on account of manufacturing defect. Suppression of material facts discussed in detail above further leads to the inference that the complainant seeks relief by hiding the reality.

19.              In case titled as Escorts Tractor Limited vs. Rajinder Singh-2015(2)CLT-63(N.C.), it was held that if the complainant failed to produce any documents pertaining to the qualification of the examined mechanic, who was employed by the Haryana Roadways for repairing the buses and not the tractors (defected vehicle), then that the complainant be deemed to have failed to prove as if the examined mechanic has knowledge about the driving and repairing of the tractor./ Same is the position in the case before us because here no proof of educational qualification of Sh.Hardeep Kumar has been produced and nor he has mentioned his qualification as mechanic. Mere mention of repair of all types of vehicles in affidavit Ex.CX not enough to establish that actually Sh.Hardeep Kumar is dealing with repair of cars also. However, if we go through estimate Ex.C9 got prepared from Rama’s Motor Workshop owned by Sh.Hardeep Kumar, then it is made out that on this letter pad itself, it has been mentioned as if said workshop deals with the work of all kinds of denting and painting. Work of denting and painting stands on different footing than that of mechanical repair of the vehicle. In view mention of above referred words of carrying of all kinds of work of denting and painting  on Ex.C9, it is obvious that the examined person Sh.Hardeep Kumar, the proprietor of the workshop, actually is not having any mechanical experience of repairing the vehicle, but he is having the experience of work of denting and painting only. In view of this also reliance on affidavit Ex.CX of Sh.Hardeep Kumar cannot be placed, particularly when he is not proved to be expert in the mechanical line of repairing the cars like vehicle in question. Story of squeezing of front side of the vehicle towards the back side is not believable because of non mentioning of any breakage of windscreen and above pointed circumstances. It is not the admission of the complainant in the hospital that will prove his case of manufacturing defect, particularly when the expert report qua such manufacturing defect not produced and nor any expert examined for proving the manufacturing defect. Rather, the contents of Safety System Manual Ex.R2/1 discussed in                 detail above establishes that in case, the air bags did not open on account of impact of the collision, then the same may be due to non impact of the collision on the sensors fitted for opening of the air bags.

20.              It is contended by counsel for the complainant that deficiency in service on the part of Ops proved because of manufacturing defect in the vehicle and that is why, the insurance claim was not submitted. These submissions virtually has no force because as and when, a person to claim damages for accidental damage, then he in the first event will approach the insurance company, even though there may be manufacturing defect. On such approach to the insurance company, the insurer will definitely  deploy the surveyor or   investigator for verification of the facts. On such investigation, true facts will come to the fore. However, complainant may not be interested in bringing on record the true facts  and that is why, he has not disclosed the manner                   of taking place of the accident in question or the object/vehicle with which the accident in question took place and further, the driver, who accompanied with the complainant at the time of accident not named and nor examined and nor his affidavit tendered in evidence. Best evidence in that respect  withheld for suppression the material facts. If really the speed of the vehicle would have been 70-80 Kms at the time of accident as contended by counsel for the complainant, then Sh.Hardeep Kumar would have mentioned in his affidavit Ex.CX, that on inspection, he found the exact reflected speed in Speedometer to be on a particular point, but that is not disclosed and as such, statement of Sh.Hardeep Kumar cannot be believed that at the time of accident, speed of the car in question was 70 Kms.

21.              It is contended by counsel for the complainant that air bags were near the bumper which stood cracked, but despite that air bags did not open and as such, there was manufacturing defect in the vehicle in question. However, affidavit Ex.CX of Sh.Hardeep Kumar or of complainant Ex.CW1/A do not at all establish that air bags actually were located near the bumper. Rather, the contents of these affidavits and Safety System Manual Ex.R2/1 produced on record by Ops is silent in this respect and as such, submissions advanced by counsel for the complainant in this respect devoid of any force altogether. Total loss of the car even not proved by examining the surveyor/expert, despite availability. Even if the car in question may have been shown to be not in a position to move in the documents produced by Ops, despite that contents of affidavit Ex.RX of Sh.Yogesh Kumar, Workshop Manager of MRG Auto Pvt.Ltd cannot be ignored because he claims that the sensors of the air bags are underneath the head lights and the they opens only, in case of impact on the head lights. Sh.Hardeep Kumar has not disclosed the impact of the accident on the head lights at all and as such, virtually the examined expert submitted lope-sided report without ascertaining the location of the sensors fitted for opening of the air bags.

22.              Therefore, in view of the above discussion, we find that the alleged manufacturing defect is not proved by leading any reasonable and believable evidence. Rather, complainant suppressed the material facts qua the manner of taking place of accident etc., and as such, for both these reasons, the complaint merits dismissal, particularly when during pendency of the complaint, even efforts not made by the complainant to get the vehicle inspected from an expert by applying    to this Forum.

23.              As a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

24.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:28.12.2016

Gurpreet Sharma.